The California State Senate is considering a bill that would make it a crime to “willfully and repeatedly” refuse “to use a transgender resident’s preferred name or pronouns” in a public health, retirement or housing institution. State Sen. Scott Wiener (D-San Francisco) has introduced SB 219 with a variety of transgender protections but the pronoun controversy is likely to get the most attention. Violators face a year in jail and a potential $1000 fine. The criminalization of pronoun misuse however could raise serious free speech and other constitutional concerns.
The bill imposes the limitations on long-term care facilities and staff but critics believe that it will lay the foundation for a broader law to apply to public schools and other facilities. The law states in part:
(a) Except as provided in subdivision (b), it shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status:. . .(3) Where rooms are assigned by gender, assigning, reassigning, or refusing to assign a room to a transgender resident other than in accordance with the transgender resident’s gender identity, unless at the transgender resident’s request.(4) Prohibit a resident from using, or harass a resident who seeks to use or does use, a restroom available to other persons of the same gender identity, regardless of whether the resident is making a gender transition or appears to be gender-nonconforming. Harassment includes, but is not limited to, requiring a resident to show identity documents in order to gain entrance to a restroom available to other persons of the same gender identity.(5) Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.(6) Deny a resident the right to wear or be dressed in clothing, accessories, or cosmetics that are permitted for any other resident.